California Securities Co. v. Grosse

THE COURT. Motions have been made by plaintiff and respondent to dismiss the appeal or affirm the judgment in each of the above actions for foreclosure of mortgages on real property. Defendants Charles E. Grosse and Hester M. Grosse appealed on the ground that the prevailing economic depression made payment of their loan impossible, and therefore constituted the defense of impossibility of performance. It was further urged that plaintiff was estopped by reason of an alleged oral agreement of extension made by its officers. That the depression cannot constitute a defense to a foreclosure proceeding is clear. (Brennan v. American Trust Co., S. F. No. 15009, ante, p. 635 [45 Pac. (2d) 207].) The lower court, considering conflicting evidence, found against the defense of estoppel; and it is settled, of course, that an unexecuted oral modification of a written contract is ineffective. (Civ. Code, sec. 1698.) The motions are granted and the judgments are affirmed.